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Geoffrey R. Stone

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The Supreme Court, the Affordable Care Act, and the Slippery Slope

Posted: 03/28/2012 12:02 pm

There is no doubt that a state can constitutionally require citizens to have health insurance. Why, then, is the Supreme Court fussing over the constitutionality of the individual mandate provision of the Affordable Care Act?

The answer is simple. States have plenary authority to legislate on matters of public policy. The national government, however, is a government of limited powers. It cannot constitutionally act unless the Constitution authorizes it to do so. The central question in the case now pending before the Supreme Court is whether the Constitution grants Congress the authority to require individuals to have health insurance. Opponents of the law argue that it exceeds the legitimate authority of the national government.

The government defends the constitutionality of the individual mandate on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power "to regulate Commerce ... among the several States."

Over time, the Supreme Court has held that under this provision Congress can constitutionally regulate activity if, in the aggregate, it has "a substantial economic effect on interstate commerce." Moreover, as Justice Rehnquist explained in 1995, the Court's role in determining the constitutionality of federal legislation under the Commerce Clause is limited to deciding whether Congress "had a rational basis ... for concluding that a regulated activity sufficiently affected interstate commerce" to merit federal action.

It is the Commerce Clause that authorized Congress to enact such legislation as the Sherman Antitrust Act of 1890, the Fair Labor Standards Act of 1938, the Civil Rights Act of 1964, the Environmental Policy Act of 1969, the Controlled Substances Act of 1970, and the Americans with Disabilities Act of 1990, to cite just a few examples.

In light of past decisions of the Supreme Court, arguments against the constitutionality of the Affordable Care Act initially seemed completely spurious. There can be no doubt that the economic effects of the health care industry on interstate commerce are huge, comprising more than 17 percent of the entire national economy. Thus, whatever the merits of the individual mandate in terms of public policy, there seemed no serious question about its constitutionality.

But here we are, the day after the Supreme Court heard arguments on the constitutionality of the individual mandate, and commentators reading the tea leaves of the justices' questions think that there is now a realistic possibility that Justices Roberts, Scalia, Kennedy, Thomas and Alito might actually vote to hold the Act unconstitutional. This is surprising even to many conservatives, who might not like the Act, but who nonetheless think it is clearly constitutional.

What, then, is the argument against the constitutionality of the individual mandate? The argument, quite simply, is that unlike other federal regulations of economic activity, the individual mandate requires individuals to do something (buy health insurance) even though they have not affirmatively done anything themselves to affect commerce.

Unlike the businessman who enters into an agreement with a competitor to restrain competition in violation of the Sherman Act or the employer who refuses to hire an African American in violation of the Civil Rights Act, the individual who simply doesn't buy health insurance hasn't done anything to merit federal attention.

It should be pretty obvious that this is a distinction without a difference. Why is the employer who refuses to hire an African American any different from the individual who refuses to buy health insurance? Of course, one can say that the employer is in fact doing something -- he is refusing to hire an African American. But that is no different than refusing to buy health insurance. The line between action and inaction in these situations is pointless.

One might also argue, however, that the person who refuses to buy health insurance is not doing anything that affects interstate commerce. He is simply making a decision not to buy something. That might be true if the individual never called upon the rest of us to pick up the tab when it later turns out that he needs health care. Because we are not a heartless community, we do not turn people away when they need medical attention, even if they can't afford it.

The problem, then, is that the decisions of individuals in the aggregate not to buy health insurance wind up having a dramatic effect on the cost of health care for everyone else and therefore have a substantial effect on interstate commerce. The healthy young Texan who chooses not to purchase health insurance raises the cost of insurance for the older Arkansan who does. And this is true millions of times over. It therefore makes perfect sense for Congress to attempt to deal with this problem by requiring people to have health insurance, just as states require people who own cars to have auto insurance.

What seems to bother the conservative justices, though, is the slippery slope. If the federal government can require individuals to purchase health insurance, then there is no stopping point. The federal government can require us all to eat broccoli if that would help the broccoli industry or make us healthier (Scalia) and to buy burial insurance to avoid the risk that when we die the government will have to dispose of our bodies at public expense (Alito).

Lawyers love slippery slope arguments. They are a useful way of testing the wisdom of a particular principle or decision. If we do X, then what else will be have to do if we act consistently? Will we also have to do Y and Z? And if Y and Z are not good, then perhaps we shouldn't do X.

But the slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope. The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.

If the decisions of individuals not to eat broccoli and not to buy burial insurance had similar effects on interstate commerce, then it might also be appropriate for the national government to intervene. But the hypotheticals are, quite frankly, ridiculous. They are bad arguments to which any first-year law student knows the answer. If the conservative justices, who are, after all, very good lawyers, rely on such arguments to defend a decision to invalidate the Affordable Care Act, then we know something else is going on.

How justices who purport to celebrate their commitment to judicial restraint and judicial modesty could even imagine striking down this law on such transparently weak grounds is beyond comprehension. For that reason, I don't believe they will do so. If they do, it will be (another) dark day for the Supreme Court, which already labors under a cloud of public disillusionment after its decisions in Bush v. Gore and Citizens United.

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Don't worry, I got this. I'm a ninja
07:07 PM on 04/08/2012
If the Affordable Health Care Act is deemed constitutional, how do you think it will be enforced on the states that don't want it? Do you think nullification will come into play? I think some states have already used nullification as a reason to not adhere to the ACA if it is deemed constitutional. Will these states secede from the union using nullification? I am curious about this if anyone has thoughts.
11:27 AM on 04/03/2012
Why do I NOT hear anything about the MANDATE that seniors MUST PURCHASE a prescription drug plan under PART D or pay a penalty. Aren't seniors being discriminated against? If the Affordable Care Act is overturned can we then overtun Part D? I am 68 and take no prescriptions yet I have been paying into a drug plan rather than being penalized. See the government booklet, Medicare & You pages 78 & 79. Please somebody address this in the media and get this message to the Supreme Court.
05:03 PM on 04/13/2012
Let me guess ... you do "NOT hear anything ...." because it's actually optional? That aside, something tells me you don't quite understand the concept of insurance. Using your logic, there is no need to buy life insurance until you are actually dead.


Optional benefits for prescription drugs available to all people with Medicare for an additional charge. This coverage is offered by insurance companies and other private companies approved by Medicare.
yes, a proud working american and a socialist
12:13 AM on 04/02/2012
My problem with the law is that it causes a person to engage ie purchase an insurance product from a private company. Not that is causes a private person to buy insurance. We have been required to buy medicare since 1965, and no problem. I also don't like that health insurance is still tied to a job. Your employer still gets to choose what insurance product you can get. If its truly and individual mandate then make a public option available and take the employers out of the mix completely. Employers can pay a tax or fee for every employee, this fee will go towards the employees choice of coverage.
10:59 AM on 03/30/2012
You are looking at the issue backwards, which is why you're frustrated that a logical fallacy is being used in arguments. The issue is that the Constitution clearly intended a limiting principle to exist, where it is clear that certain things (like perhaps mandating the purchase of broccoli) are unquestionably unconstitutional. So the slippery slopes are just being used to try to focus the lawyers on the actual issue of presenting a limiting principle. Justice Alito even eventually asked very directly, "could you express your limiting principle as succinctly as you possibly can?"
09:49 AM on 03/30/2012
If our hypothetical uninsured Texan gets sick while visiting Nebraska and needs an ER visit in Nebraska why is that not interstate commerce?
07:26 AM on 03/30/2012
I'm not so sure we should discuss law or reason when we talk about this potential ruling. When Antonin Scalia is citing the same arguments as brain dead rightwing hate blogs, it's not as if he's trying to hide his blatant political bias.
Stop the Obstructionists!
03:36 AM on 03/30/2012
Until recently Cost Republicans supported federal government mandating healthcare. For them to argue about the constitutionality of the mandate is beyond imagination.

Supreme Court Justices need to put politics aside and rule in the best interest of the people.
Law Clerk
07:25 PM on 03/29/2012
Two things:

1) If unconstitutional, public option would be back on the table and possibly more popular with even independents as health care costs will continue to rise regardless of the bill being struck down.

2) If unconstitutional, so is privatization of Social Security.
Liberals rock!
04:10 PM on 03/29/2012
Excellent article.
Liberals rock!
04:08 PM on 03/29/2012
It's amusing the people posting from the right who own crystal balls and are just SURE that certain groups, especially young adults NEVER need healthcare.
This user has chosen to opt out of the Badges program
My retirement plan: Social Security.
04:46 AM on 03/30/2012
A twenty-something man or woman often can't afford health-care insurance, but they won't stay indoors -- no, they're spending the weekend on belay, hanging hundreds of feet over rock and rubble or something just as terrifying and risky. While they may not be prone to chronic ills, catastrophe can happen to anyone, even a young person.
yes, a proud working american and a socialist
12:14 AM on 04/02/2012
True, and I don't know of any 20 something ladies who do not need heatlhcare. Its just part of being a woman.
02:01 PM on 03/29/2012
The individual mandate penalty for being uninsured ought to be very expensive and proportional to the wealth of that individual, making it not worthwhile to wait to purchase a healthcare coverage. To have a sophisticated healthcare running is costly to be ready for you, just in case you ever get sick.

There need to be alternatives for the consumers to all these insurance companies such as some Healthcare Coverage Unions operating primarily for their members instead of operating primarily for profit -which is done by the Insurance companies.
Michael Morrison
Proud Dad, Engineer, Aspring Geophysicist
01:53 PM on 03/29/2012
The standard blither that law schools use to justify continual expansion of Federal Powers at the expense of state and individual rights.
Sock No 4
Comfy sock
01:52 PM on 03/29/2012
Confirmation bias is a beautiful thing.
01:46 PM on 03/29/2012
But this Supreme Court votes political instead of legal and that is the problem.
02:40 PM on 03/29/2012
You are right the conservatives will vote to uphold the constitution and the liberals could care less about the constitution.
Keeping the Left honest, 7 days a week!
02:42 PM on 03/29/2012
If they went on purely legal grounds this would be a 9-0 decision against Obamacare.
Liberals rock!
04:09 PM on 03/29/2012
The complexities of this issue elude some people
300Mm/s Not just common sense, it’s the law
12:52 PM on 03/29/2012
The Commerce Clause does give the power to regulate interstate commerce to the Federal government but it does not convey the power to create that commerce. The mandate requires people to participate in commerce and this is a gross unprecedented expansion of government power. There is nothing in the Constitution that requires the health system to provide free services to that healthy young Texan who chooses not to purchase health insurance.